March 12, 2009

Spy Court Up and Running in Its New Home

The nation’s spy court has begun operations in a new, secure space on the third floor of the E. Barrett Prettyman Courthouse in downtown Washington, sources say, ending its 30-year run of issuing secret warrants from within the Justice Department.

The sources spoke on the condition of anonymity, citing the strict secrecy surrounding the Foreign Intelligence Surveillance Court and its activities. It’s unclear when the court first convened in its new home -- the sources would only confirm that the relocation was complete -- but anyone walking down the hallway in recent weeks could have guessed the $2 million courtroom was primed for business. “Restricted Access” signs and biometric hand scanners announce the super-sensitive nature of the proceedings inside.

Justice Department spokesman Dean Boyd declined to discuss the move, as did court officials. Chief Judge Royce Lamberth, of the U.S. District Court for the District of Columbia, which now shares the courthouse with the spy court (as well as the U.S. Court of Appeals for the D.C. Circuit), said in a recent interview with The Washington Post that the FISA judges would be moving into the space sometime in early March.

Lamberth, who served on the court from 1995 through 2002, and Judge Colleen Kollar-Kotelly, the current chief FISA judge, were the motivating forces behind the move. The judges wanted to assert the court’s independence from the Justice Department, where until recently it convened in a secure conference room. (A lesser consideration might have been aesthetics; lawyers who have been in the room describe it as dingy.)

Critics often cast the court as excessively deferential to government lawyers seeking warrants in terrorism and espionage cases. While the court operates in total secrecy, the Justice Department releases annual statistics, which show that FISA judges approve the vast majority of warrant applications. In 2007, for instance, the court approved 2,370 applications to conduct electronic surveillance and physical searches; the court made “substantive modifications” to 86 of the applications and denied three of them.

Lamberth and others have fiercely defended the court’s autonomy, and the move only pronounces it, the judge said. "The move is symbolic of the independent role the court plays in overseeing the government's surveillance activities," Lamberth said in an e-mailed statement.

The court, created in 1978 to rein in abusive government spying, has 11 judges appointed to seven-year terms by the chief justice. FISA judges work in weeklong shifts, with one judge sitting at a time.

Lamberth told the Post the new space is set up like a proper courtroom, with a bench for a judge. In the Justice Department room, FISA judges and government lawyers and agents met around a conference table.

Post reporter Del Quentin Wilber described the construction of the courtroom, which used to house federal grand juries before a new wing of the courthouse was completed in 2005: “First, the workers encased the room in reinforced concrete. Then came the thick wood-and-metal doors that seal into the walls. Behind those walls they labored in secret for two years, building a courtroom, judge's chambers and clerk's offices.”